Howard v. State, 6 Div. 795

• Decision Date: 22 May 1979
• Docket Number: 6 Div. 795
• Citation: 371 So.2d 475
• Parties: Prynter HOWARD, Jr. v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 475

371 So.2d 475

Prynter HOWARD, Jr. v. STATE.

6 Div. 795.

Court of Criminal Appeals of Alabama.

May 22, 1979.

Benjamin Daniel, Birmingham, for appellant.

William J. Baxley, Atty. Gen., and Samuel J. Clenney, III, Asst. Atty. Gen., for the State, appellee.

DeCARLO, Judge.

The appellant was charged in an indictment with feloniously taking and carrying away one diamond ring, valued at $1,400.00, the personal property of Loyle C. Seymour. After a trial before a jury in Jefferson County, Bessemer Division, he was found guilty and sentenced to ten years imprisonment. Notice of appeal was given and the appellant was declared an indigent for the purposes of this appeal.

In April, 1977, Shirley Stringfellow was employed by Loyle C. Seymour Jewelers. She recalled that, on April 19, 1977, the appellant, whom she identified in court, came into the jewelry store with another man. The appellant was the larger of the two men.

The men stated that they wanted to see "some gent's diamond rings." After viewing some rings, the men asked to see something larger. At that point, Stringfellow summoned the store owner, Loyle C. Seymour. Seymour spoke with the two men for a short time and the men left the store.

Stringfellow said that the men returned at a later time, but she could not remember the date. She recalled that she was at work at the time and, when she asked the men if she could help them, they responded that they were waiting for the owner, Mr. Seymour. According to Stringfellow, Seymour came out and she went to the front of the store. She stated that "the next thing that I knew, Mr. Seymour had a gun." Subsequently, the police were called and the appellant and the man with him were taken away.

During cross-examination, Stringfellow testified that, when the appellant and the other man came into the store, she noticed some jewelry on the smaller man. She said he was wearing several diamond rings, but stated that she did not remember the appellant wearing any jewelry. According to Stringfellow, she remembered the appellant asking to see some larger rings. She said that she showed him only about two or three rings because they wanted to see something bigger than any she had at the time.

Further, the witness said she did not see the appellant and the other man come into the store on the second occasion that they were there because she was not working. However, on the third occasion when they asked to see Mr. Seymour, she was working and saw them again.

Stringfellow also stated that Margaret Snyder and some other store employees were working the day the men arrived on their third visit. She recalled that one of the rings she showed to the men was a diamond cluster, weighing approximately two carats.

Margaret Snyder was employed by Seymour Jewelers on the day in question and testified that around eleven o'clock that morning, the appellant, whom she identified at trial, came into the jewelry store with another man shorter than himself. She recalled that the smaller man asked if they could be shown some diamond rings. During the trial, she recalled that the two men had been in the store a week earlier.

According to Snyder, on the second time, the two men were shopping together and asked to see a large diamond cluster ring which they pointed out in the jewelry case. The witness said they looked at the ring and then returned it to her. She described the ring as a large, white gold cluster, having seven diamonds, weighing approximately two carats.

Further, Snyder stated that, when she placed the "large cluster diamond ring back in the tray, the men requested to see the entire tray." At that time, she went to the back of the store and asked for Mr. Seymour to show them the tray. She explained that she was not allowed to remove the tray from the jewelry case, but was allowed to remove only one diamond ring at a time.

She recalled that she continued to observe the men as they talked with the owner of the store. Snyder said that she recalled hearing the smaller of the two men say, "I have come back to get a ring . . . I have come back to see that ring." At that time Seymour removed the tray from the jewelry case.

According to Snyder, she could hear the men discuss the ring with Mr. Seymour but did not see them try on any of the rings. She recalled hearing the smaller of the two say that they would return after a "little while."

After the men had left, and some five minutes had elapsed, Snyder said she walked over to the case and realized that a ring had been changed. She said that the two-carat, white gold diamond ring was not in the tray, but that a yellow gold glass ring was in the slot. Snyder said that, on making a close examination, she called the owner and informed him that the diamond ring was missing.

During the trial, she was shown State's Exhibit 1, which she stated was the ring left in the place of the diamond cluster ring that was taken.

Further, the witness testified that she was working on the Friday, April 22nd, when the two men returned and that she called the police immediately after she and Mr. Seymour recognized them.

Snyder added that, on the Tuesday before the men were arrested on Friday, she had informed them that the price of the ring as she recalled it was "twenty-seven hundred dollars."

Loyle C. Seymour was the owner of Seymour Jewelers in Bessemer, Alabama. He identified the appellant during the trial as one of the two men who had come into his jewelry store on three different occasions. Seymour recalled that on the first occasion, which was a few days before April 19, 1977, Shirley Stringfellow, one of his employees, came to the office and said that two men wanted to see some big diamonds. According to Seymour, he then showed the appellant and a smaller man a two-carat cluster diamond ring. Seymour stated that the men told him that they were expecting an income tax refund and would be back in a few days.

On April 19th, which was the second occasion, the two men returned and he again showed the appellant and the other man the diamond cluster ring which he had shown them on the previous occasion. But, at that time, the tray containing the rings was taken from the showcase and placed on top of the showcase counter.

Seymour said that the appellant and the smaller man each tried on several different rings. He said they also exchanged the rings between themselves and tried on the rings that the other had previously tried on.

Seymour stated that he did not recall whether the two men were wearing any rings on the second occasion they came into his store. However, he stated that he did recall that one of them had a billfold containing some large bills. Seymour testified that, on the second occasion, the men did not buy anything and that the appellant left before the smaller man.

According to Seymour, they had been gone only a few minutes when Margaret Snyder informed him that the rings had been "switched." Seymour said he then examined the tray where the two-carat cluster ring was supposed to be and found a "fake ring." During the trial he identified State's Exhibit 1, as the "one that was stuck in the place of the diamond ring." Seymour said that the "fake ring" was worth approximately eight or ten dollars, and the diamond cluster ring was worth $1,450.

Further, Seymour stated that, on Friday, April 22, 1977, when the men returned to the store for the third time, he and Snyder recognized them and, after the police were called, the men were arrested and taken away. He added that, on April 19th, when they discovered the ring missing, the police were called and a report was made.

Seymour testified that usually he and his daughter ordered the rings for the jewelry store but that other employees could order from the wholesale house. Further, he stated, in reference to State's Exhibit 2, which was the ring left in place of the diamond cluster ring, "we don't carry a cheap ring as large as this big ring. We never have had."

Detective Sgt. B. E. Shew, of the Bessemer Police Department, stated that he was working April 22, 1977, and went to Seymour Jewelers where he saw the appellant and his brother, Claude Howard. Detective Shew said that, shortly after he arrived at the store, Officers Thedford and Willis came to the scene and the appellant and his brother were taken to the police department.

Norma York was employed by Goodwin Jewelry Company in Bessemer, Alabama, which was located "about a block" from Seymour Jewelers. She testified that, on April 19, 1977, the appellant came into Goodwin Jewelry with another, smaller man. She stated that they requested to see a ring that was in the display window of the store. After she retrieved the ring from the window, she placed it in a box and handed it to the man who was with the appellant. She stated that, at that time, the other man asked the appellant to look at it with him and they walked toward the front door of the store, which was near the counter where she was standing. She said the smaller man made the request so he could see the ring in the sunlight. She recalled that, at that time, both men had their backs to her and that the ring they were holding was a "nine-diamond, one carat cluster, gent's ring."

York stated that she removed the ring from the box herself and gave it to the two men so that they could look at it. She said the ring was returned to her and the men left the store without purchasing anything.

According to York, later on the same date, she discovered the ring in the box was not the ring that she had shown to the appellant and the smaller man.

During cross-examination, she identified a ring, State's Exhibit 3, as "just glass" and stated that State's Exhibit 4 was, in fact, the diamond ring.

She stated that the smaller man was the one she had handed the ring to and said that the appellant had handed it back to her. It was also the smaller man who had taken the ring to the door and the appellant had just stood and...